by Justice Sanjay Kishan Kaul
This Commission should be set up expediently before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation.
The Valley of Kashmir carries a historical burden. It has a social context. Thus, in evolving the constitutional status of the region, it is difficult to segregate the aforesaid. “We, the people” of Jammu & Kashmir are at the heart of the debate. They have carried the burden as
victims of the conflict for several decades originating from 1947 with the invasion of the Valley. Intervening political circumstances did not permit a redressal to the fullest extent of the invasion. The consequences remained in terms of parts of Kashmir being occupied by other countries. The second round of insurgency holds its origin to the latter part of the 1980s. There was a troubled situation at the ground level, which was apparently not redressed. It culminated in the migration of one part of the population of the State 1989-90. It is something that our country has had to live with and without any redressal for the people who had to leave their home and hearth. It was not a voluntary migration.
The situation became so aggravated that the very integrity and sovereignty of our country was endangered and, thus, the Army had to be called in. Armies are meant to fight battles with enemies of the State and not really to control the law-and-order situation within the State but then, these were peculiar times. The entry of the Army created its own ground realities in their endeavour to preserve the integrity of the State and the nation against foreign incursions. The men, women and children of the State have paid a heavy price.
During my travels home over the years, I have observed the social fabric waning and the consequences of intergenerational trauma on an already fractured society. I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this Epilogue.
In order to move forward, the wounds need healing. What is at stake is not simply preventing the recurrence of injustice, but the burden of restoring the region’s social fabric to what it has historically been based on – coexistence, tolerance and mutual respect. It is worth noting that even the partition of India in 1947 did not impair Jammu & Kashmir’s communal and social harmony. In this context, Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity!
The first step towards this is to achieve a collective understanding of the human rights violations perpetrated both by State and non-state actors, against peoples of the region. There have been numerous reports documenting these incidents over the years. Yet, what is lacking is a commonly accepted narrative of what happened, or in other words, a collective telling of the “truth”. Internationally, the right of victims of human rights violations to the truth is an end in itself.
It encompasses a structural investigation of the events and socio-political structures that led to the atrocity, the particular circumstances of individual suffering, and an authoritative reporting of the results of the investigation.
Additionally, truth-telling provides an opportunity for victims to narrate their stories, which facilitates an acknowledgement from those responsible for perpetuating the wrongs, and from society as a whole. This paves the way for reconciliation.
While there are different ways of achieving these objectives, truth and reconciliation commissions have been particularly effective globally. South Africa’s Truth and Reconciliation Commission was set up to investigate human rights violations perpetrated during the period of the Apartheid regime. It served as a means of reckoning or catharsis for victims and fostered peace-building. Reflecting on its success, Albie Sachs, J notes:
“…As a result of the TRC, the private sorrow and grief of tens of thousands was publicly acknowledged in an embracing and personalized way. Another form of acknowledgement emerged from the perpetrators themselves. They had to come forward openly in front of the television cameras, owning up to their crimes. Finally, there was acknowledgement by the whole country that these things happened and can happen again—that we needed to fit all these facts together into some kind of significant pattern which would enable us to understand their genesis and do what we could to minimize any possibility of their recurrence.”
A Sachs; Strange Alchemy of Life and Law, 155; OUP, 2009
In the past, calls for setting up a truth and reconciliation commission have also been echoed by different sections of the Valley.
In view of the in-roads made globally, and endogenous requests for truth and reconciliation, I recommend the setting up of an impartial truth and reconciliation commission (“Commission”). The Commission will investigate and report on the violation of human rights both by State and non-state actors perpetrated in Jammu and Kashmir at least since the 1980s and recommend measures for reconciliation.
This Commission should be set up expediently before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation. At the same time, considering the significance of the matter and the sensitivities involved, it is my view that it is for the Government to devise the manner in which this should be set up, and to determine the best way forward for the commission.
I am alive to the challenge that recommending the setting up of a truth and reconciliation is beyond the realm of this Court. However, I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass the responsibility of both state and non-state actors with respect to human rights violations. ( RG Tietel; Transitional Justice and Transformation of Constitutionalism in Globalizing Transitional Justice; OUP, 2014).
This includes the duty to take reasonable steps to carry out investigations of violations. (Velasquez Rodriguez v Honduras, (Ser. C) No. 4 (IACHR) 1988) It is in this context that the proposed Truth and Reconciliation Commission accords with constitutionalism.
Our Constitution is no different and is designed to ensure that courts offer justice in situations where fundamental rights have been violated. In doing justice, historically, our courts have been sensitive to the social demands of our polity and have offered flexible remedies. In Vishaka and Others v State of Rajasthan, this Court issued guidelines to address workplace sexual harassment in the absence of an enacted law, which operated until the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
As a word of caution, the Commission, once constituted, should not turn into a criminal court and must instead follow a humanized and personalized process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different viewpoints and inputs from all sides. In the context of South Africa’s truth and reconciliation commission, Albie Sachs, J observed:
“Judges do not cry. Archbishop Tutu cried. It was not a court of law in the sense of an austere institution making highly formalized findings. It was an intensely human and personalized body, there to hear in an appropriately dignified setting what people had been through. There were comforters sitting next to the witnesses—in a court of law no one is there to help the witness, to pat the shoulder, or provide water or tissues when the person weeps. Frequently the sessions would start with a song in beautiful African harmony intended to give a sense of encouragement and support to everybody present. Or it could begin with prayers. And thereafter people spoke and spoke in all the regions and in all the languages of the country. The testimony was televised, and thus the nation became witness to what had happened and heard the stories directly from the mouths of the persons concerned. Those who spoke were not complainants in a court denouncing accused persons in the dock. Nor were they litigants demanding damages for themselves, so that the greater the loss, the greater the sum they would receive.”
Taking a leaf out of South Africa’s book, the principles of “ubuntu”, or the art of humanity, and inclusiveness should be central to the process. This will facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity. Needless to say, the Commission is only one of the many avenues towards the goal of systemic reform. It is my sincere hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity. Whatever has been, has been but the future is ours to see.
(The author is the second senior judge of the Supreme Court and was one of the 5-member Constitution Bench judges that delivered the judgement on the set of petitions challenging the abrogation of Article 370. These passages were excerpted from the judgment, which the judge had written as ‘epilogue’.)
